Overturning the Indian Child Welfare Act would renew genocide of Indigenous nations
Demonstrators stand outside the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Nov. 9, 2022, in Washington. | Mariam Zuhaib / AP

Incredibly, there is a case now before the United States Supreme Court that, depending on how it’s decided, could resume the genocide of Tribal nations in the U.S. The case is centered on the Indian Child Welfare Act (ICWA), a law that gives preference to relatives and Native nations in cases involving the foster care and adoption of Native children. The plaintiffs in the case of Brakeen v. Haaland seek to overturn the ICWA.

But before going further into the details of the case, let’s reference the definition of genocide established by the United Nations General Assembly on the Prevention and Punishment of the Crime of Genocide. Article 2 of the Convention reads as follows:

“[I]n the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group;”

During the short existence of the so-called United States, all of the above heinous acts have been employed against the Indigenous nations of this country.

Section (e) of Article 2 directly applies to the case being now considered by the Supreme Court—a case which never should have even made it to the docket. To overrule the provisions of ICWA would raise the possibility, again, of forcible transferring of the children of one “group”—Indigenous nations—to another “group”—white Americans.

This would again threaten the very survival of the victimized group—the Indigenous nations—as sovereign entities, for no nation can survive if its children are taken away.

ICWA must be strengthened

Clearly, the overturning of ICWA would meet the criteria of genocide as defined in Section (e) of Article 2. To be technical, genocide does not require that a people have been totally wiped out, physically annihilated. It is sufficient to declare a genocide if measures have been taken with that apparent objective in mind or objectively steps have been taken or are being taken to bring about that result.

Before the enactment of ICWA in November 1978 by the Carter administration, as many as 35% of all Indigenous children were being forcibly removed from their families and placed in white homes. This posed a threat to the very existence of Indigenous nations.

The ICWA safeguards and strengthens tribal sovereignty by legally recognizing a Tribal nation’s authority and ability to care for its children through Indigenous governance. This is not a racial issue as opponents of the Act assert, but a recognition of the political position of Indigenous nations under the principles of Federal Indian law that countenance Tribal sovereignty.

If anything, instead of a lessening of ICWA standards, the Act in fact needs to be strengthened as recent data indicates that out–of–home placements still occur more frequently for Indigenous children than for non-Native children. Moreover, Native children are still four times more likely to experience foster care in their first meeting with a judge at a child welfare hearing than white children.

Genocide must not be reinstated

In light of these facts, the overturning of ICWA would be nothing less than catastrophic. All of this points to the need for ICWA to be strengthened and expanded. Again, its overturning would be genocidal.

The Supreme Court must not cave in to racist arguments of the right-wing proponents of the overturning of ICWA. It does not take a great amount of reasoning to conclude that a return to the pre-ICWA era would put Tribal existence again in jeopardy.

The children are the future, and without the children there can be no future. A right-wing victory over ICWA would pave the way for attacks on other foundations of Tribal sovereignty.

The so-called United States should be relegated to an ignominious pariah in the world family of nations if ICWA is dismantled.

As with all op-eds published by People’s World, this article represents the opinions of its author.


Albert Bender
Albert Bender

Albert Bender is a Cherokee activist, historian, political columnist, and freelance reporter for Native and Non-Native publications. He is currently writing a legal treatise on Native American sovereignty and working on a book on the war crimes committed by the U.S. against the Maya people in the Guatemalan civil war He is a consulting attorney on Indigenous sovereignty, land restoration, and Indian Child Welfare Act (ICWA) issues and a former staff attorney with Legal Services of Eastern Oklahoma (LSEO) in Muskogee, Okla.